LW308: Constitutional Law Semester 1, 2022

Tutorial- & Forum Questions & Answer - Feedback

Topic 9: Principles of Interpreting Written
Constitutions
Activity 9.1 – Warming up exercise

To warm up, for this first activity, please log on to Paclii and choose a constitution and
locate the interpretative provisions of at least two (2) Constitutions, one being your own
country’s Constitution, the other one you can choose freely from the USP region, but also
including Australia or New Zealand if you like.

- Which constitutions did you choose and what section or sections contained the
interpretive provisions?

- What are the mechanisms set out in the sections you have identified that may
aid in Constitutional interpretation? In other words, how do you think these
sections work if someone wants to use/apply them in interpretation?

Which constitutions did you choose / what sections contain the interpretive provision?

For example: Solomon Islands constitution Section144, Kiribati section 116. Fiji: Chapter 12,
Section 163, Part B, Interpretation.

Acceptable also to discuss larger ie.:

Solomon Islands Constitution Preamble (2), 2(1), 6, 7(1-3), 8, 9 (1-5), s10 (3), s11(2), s19 (1), s26 (1),
s109 (1), s113 (2), s144 (1) Kiribati Constitution Preamble (2), s18 (1), s29 (1) & (2), s116 (a) & (b),
s125 (a) & (b), s132 (1).

Also see i.e.: Fiji: s4, s6, s7(1), s9(2) and (4), s10(2), s19(2), s21(8) and various other jurisdictions…

However, if you mention all the specific interpretive regimes, you need to then be clear to distinguish
between solely interpretive sections (ie. those sections only functions as mechanisms in the
understanding of most/all other sections) and those sections are ordinary sections regulating a certain
issue but that in addition self-contain the key(s) to their own interpretation.
Always be careful to answer the actual question please.

What are the mechanisms set out in the sections you have identified that may aid in Constitutional
interpretation? In other words, how do you think these sections work if someone wants to use/apply
them in interpretation?
- Interpretations sections as guidelines;
- As mechanisms for interpretation, that is, somewhat rigid instruments not only guiding but channelling
and focusing interpretation;

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- Helping to explain complicated terms inside the constitution so that readers can familiarize
themselves with technical terms or words
- Avoiding errors and ultimately unnecessary litigation.

A good example of a student answer: One confusing mechanism that has been cleared in the
constitutional interpretation is "functions" includes rights, duties and powers;
Often people may confuse the term for some ordinary meaning but it is entirely a
different definition for this interpretation provision. It keeps readers on track on
understanding what the term itself means when it comes up inside the constitution.

Activity 9.2. – The issues with Japan’s extra-judicial constitutional re-interpretations

Article 9 of the Constitution of Japan, among other things, renounces “war as a sovereign right
of the nation and the threat or use of force as a means of settling international disputes”. This
has been understood by the courts and all past governments of Japan to prohibit Japan’s
participation in collective self-defense operations, or engagement in any use of force, for any
reason other than the direct defense of Japan.

Read the article written by Craig Martin, The Case Against “Revising Interpretations” of the
Japanese Constitution, (2007) 5 (5), The Asia Pacific Journal, available on moodle and at
https://apjjf.org/-Craig-Martin/2434/article.html. (link checked to work 17 April 2021).

- What are the criticisms the author gives in regards to the extra-judicial panel of
experts assuming to exercising constitutional interpretation?

- Who are the legitimate interpreters in the author’s opinion and why?

- Why does the author believe that what he terms as ‘re-interpretation’ of the
Japanese Constitution is unreasonable?

What are the criticisms the author gives in regards to the extra-judicial panel of experts assuming to
exercising constitutional interpretation?

For example:

- Problems with having a panel of experts as such:

o Most members of the panel were those that have been publicly outspoken and pre-determined in
their opinion about the existing restrictions on Japans defense posture. Ie.: A student rightly noted that
Mr. Abe noted in the opening of the panel meeting that the question was “how” instead of “whether”
to re-interpret the constitution, thus pre-determining the outcome of the study.

- Panels may be beneficial in the short run but not in long run because the approach will threaten to
weaken integrity and normative power of the Constitution
Who are the legitimate interpreters in the author’s opinion and why?
The courts ie. Supreme Court, as the legitimate interpreters because the justices or judges in the courts
have the constitutional authority to interpret the constitution.

Why does the author believe that what he terms as “re-interpretation” of the Japanese Constitution is
unreasonable?
The “re-interpretation” sought being problematic, perhaps untenable. Specific interpretation of Art. 9
cannot be easily reconciled or aligned with either the language or purpose of the constitution. In other
words, defense policies that it is intended to justify may be inconsistent with the current language of
Article 9 / the integrity of Japan’s constitutional order.

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Activity 9.3 – Hunt Case

Read the Samoan case of Hunt v Police [2006] WSCA 5 (26 April 2006), available on Paclii at:
http://www.paclii.org/ws/cases/WSCA/2006/5.html (link checked to work 17.04.2021).

- What was the decision of the Court in this case? (Keep this very brief please).

- Did the Court adopt a flexible or lose approach to interpreting the

constitutional provisions?

Decision (Facts:) :

Appeal was dismissed. Section 47 is not discriminatory and not violation of Art 15 Constitution
(equality) - rape can pose severe consequences on the female victim, being the nature of this
offence and women biologically not able to penetrate. The court also relied on the case of R v
Hess = an offence which can be committed by one sex only should not amount to discrimination.
See para [19] The Chief Justice considered the Canadian case of R v Hess [1990] 2 SCR 906
where a majority of the Court concluded that an offence, which as a matter of fact, could only be
committed (biologically) by one sex, did not necessarily constitute discrimination.
Two basic elements sexual intercourse and lack of consent of the victim; Appeal was dismissed
and that s47 was not discriminatory.
See at para [9] - argument for the appellant was to the effect, that because section 47. (1) refers to
rape as being the act of a male, exclusion of females is discriminatory within the meaning of
Article 15. Although Mr Malifa put his contention in various ways before us essentially his
argument depended on the same assertion in this Court. The Chief Justice noted that Article 15
excluded from its provisions the making of any provision for the protection of women.
Court quoting from Hess in para [19]:
'Nevertheless, there are certain biological realities that one cannot ignore and that may
legitimately shape the definition of particular offences. In my view, the fact that the legislature
has defined an offence in relation to these realities will not necessarily trigger s.15(1) of the
Charter. I think few would venture to suggest that a provision proscribing self-induced
abortion could be characterized as discriminatory

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because it did not apply to men. Such an argument would be absurd. In my view, s.15(1)
does not prevent the creation of an offence which, as a matter of biological fact, can only be
committed by one of the sexes because of the unique nature of the acts that are proscribed.'

Did the Court adopt a flexible or lose approach to interpreting the constitutional provisions?

See para [5] Section 47 (rape) must be considered in context.

This may indicate a flexible and not rigid approach to interpretation - CJ also considered public
interest and balance of interest in view of Constitution Art 15.
At para [8] reference is made to Article 15 of the Constitution is in the following terms:
{1} All persons are equal before the law and entitled to equal protection under the law.
{2} Except as expressly authorized under the provisions of this Constitution, no law and no executive or
administrative action of the State shall, either expressly or in its practical application, subject any person or
persons to any disability or restriction or confer on any person or persons any privilege or advantage on ground
only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or
any of them.
{3} Nothing in this Article shall:
(a) Prevent the prescription of qualification for the service of Western Samoa or the service of a body corporate
directly established under the law; or
(b) Prevent the making of any provision for the protection or advancement of women or children or of any
socially or educationally retarded class of persons.
{4} Nothing in this Article shall affect the operation of any existing law or the maintenance by the State of any
executive or administrative practice being observed on Independent Day:
However, CJ made decision on the basis of whether section 47 was discriminatory or not.
One could thus argue that this is strict interpretation based on wording and meaning without
taking into account the broader meaning of equality in the Constitution.
In effect, both views are possible.
The words and meaning of those words appear clear:
[6]. Section 46 defines sexual intercourse and is in the following terms:-
For the purpose of this Part of this Act, sexual intercourse is complete upon penetration; and there
shall be no presumption of law that any person is by reason of his age incapable of such
intercourse.
It should be emphasized that it is a basic part of the definition that penetration is essential.
Penetration necessarily involves penetration by the male penis.
A better answer (student answer):
In spite of the narrow meaning of the section including only males able to commit the offence of
rape, the court adopted a flexible approach in considering that rape can be carried out by any
“persons”, but it would be biologically impossible for a woman to carry out the act. Although it
may seems as though the court took a narrow meaning as per strict legalism in upholding the
wordings of “male” as preferred to “persons”,

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regardless, It adopted a wide interpretation that women can also commit the offence of rape
undoubtedly through coercion or other means, but they cannot physically rape causing
penetration nor have a driving factor to rape a man in the same way a man would rape a woman.
Therefore, in my opinion, the Court did adopt a flexible approach in interpretation of the
provision.
The Court had adopted the flexible approach to the interpretation of provision since it had taken
the whole context into account. The decision had stated clearly that women can also be subjected
to conviction of rape but had further elaborated on the physical reaction of both genders.

Activity 9.4 – Vohor Case

Read the recent Vanuatu case of Vohor v President of the Republic of Vanuatu [2015] VUCA
40 (20 November 2015), available on Paclii at:
http://www.paclii.org/vu/cases/VUCA/2015/40.html (link checked to work 17.04.2021).

- What constitutional issues were being considered by the court in this case (brief
answer please)?

- Were there any limitations to using the flexible approach identified by the Court?
If so, what were they?

Some of the constitutional issues:

Students need to really read the case here before commenting (only 3 pages).

- Infringements of Constitution

- Power and limitations to power (power to pardon)

- Abuse of power - whether speaker was entitled to exercise the Presidential powers with
regard to dissolution of the Parliament pursuant to section 43 (2) of the Constitution;
Interpretation of Article 43 (2) of the Constitution in its relation to Article 28 of the
Constitution;

- Judicial Review

What we are really interested in here (as the topic is interpretation):

Construing of the meaning of the power to pardon, as well as ‘Parliamentary system’ and
the Rule of Law in more general terms
For example: Para 29: Within any country which is committed to the rule of law,
notwithstanding the general terms of the [Pardon] Article, there is not a power which can
be exercised except in a way which is consistent with the entire constitutional framework.
It is not a power which is beyond the purview of the Court to review and assess its exercise
for legality.

See i.e. at para 30: His reference to maintaining "the stability in the Government of
Vanuatu" was plainly an irrelevant consideration. It is plain that the stability of the
Republic had no relevance to the decision of a leader to pardon himself and others who had
been recently convicted of bribery. Indeed, the stability of the country, in particular the
maintenance of the rule of law, requires that leaders are not readily absolved from such a
serious abuse of office.
A better answer was:
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The issue in this case was based on whether in the absence of the President could appoint
the Speaker as acting President. The main issue of whether it was lawful of the president
to pardon himself. In the Constitution, it states that Article 38 “ the President may pardon,
commute or reduce a sentence of a person of offence.” As for the Speaker it is stated in
Article 37 that the Speaker shall perform the functions of President under this Constitution
and any other law. However there was conflict between Article 37 and Article 53 where it
states “that the provision of the Constitution has been infringed in relations to the rights of
the Constitution.

Were there any limitations to using the flexible approach identified by the Court? If so,
what were they?

One past student quite rightly stated (well done):

There were no limitations to the flexible approach on the basis that had there been
limitations to the wording of the Speaker’s powers when acting as President, then it would
be taken as such under Article 38. The only main issue with interpretation was that if there
was an application only to the meaning of the context permitted or was there a distinction
between the exercise of the President’s “functions" as was defined under Article 37 which
could be delegated to the Speaker, and the “power” of pardon under Article 38 which could
not be delegated. The court took a flexible approach in finding that the decision of the
Speaker in pardoning himself and other offenders was regardless, in a wider sense, a clear
misuse of public power, and thus breached the Constitution. (Good)
The court stated that doctrine of immunity and the powers of the British sovereign could
not be assumed. The President’s powers were only those stated in the Constitution.
Note: In both of these cases, neither of the courts provided reasoning for the constitutional
interpretation approach used. I find both of these cases wanting in this regard.
For those interested in reading a very interesting, and well prepared, constitutional
interpretation case from PNG. The case dealt with the issue of detaining asylum seekers on
Manus Island and the court ultimately ruled it was unlawful. The PNG and Australian
Governments are currently dismantling the centre and relocating the refugees.

Activity 9.5. – Asafo’s Critique of the Samoan Court of Appeal’s decision

Read the Article (posted to the Readings) by Fuimaono Dylan Asafo entitled Asafo: A
critique of the Samoan Court of Appeal's decision - an unfortunate case of judicial
overreach (7:48 pm on 3 June 2021), also available at
https://www.rnz.co.nz/international/pacific-news/444006/asafo-a-critique-of-the-samoan-
court-of-appeal-s-decision-an-unfortunate-case-of-judicial-overreach.

- In a nutshell, giving only short keywords, what are the points the author is trying
to make?

Judicial interpretation should be careful not to impose what could amount to

judicial activist opinions on matters that should be decided by Parliament. This
could be viewed as some imposition on the separation of powers doctrine.

- In once sentence, what is the reference the author strikes to the Olomalu case?

One thing that Olomalu was teaching us is that all interpretation must start from
the clear wording of the Constitution and cannot simply replace or change the
words.

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 - Would you say the author is successful in bringing his points across? Why/Why
not? What techniques is the author using in his comments on judicial
interpretation?

Here, students were expected to carefully extract what the author is actually
saying. The author goes to some length trying to distance himself from being
misunderstood or being understood politically wrong. For this, he states his
opinion about female representation, but then distinguishes from that opinion that
there are other issues at stake, namely, the ones discussed above in the first
answer.

Activity 9.6 – An exercise case in constitutional interpretation

This activity will give you a chance to see how well you are developing the important skill
of being able to predict how a court would interpret a particular section.

Suppose that a constitutional provision (art 15) provides the following content:

(1) All persons are equal before the law and entitled to equal protection under the law.
(2) Except as expressly authorized under the provisions of this Constitution, no law and
no executive or administrative action of the State shall, either expressly or in its practical
application, subject any person or persons to any disability or restriction or confer on any
person or persons any privilege or advantage on ground only of descent, sex, language,
religion, political or other opinion, social origin, place of birth, family status, or any of them.

Your client (a male) has been charged with raping a woman. He wishes to bring a
constitutional challenge on the basis that the rape laws under which he is charged
are unconstitutional because they are too gender specific.
The offence of rape is defined as: “Rape is the act of a male person having sexual
intercourse with a woman or girl without her consent being freely or voluntarily given”
The defendant argues that this law is discriminatory in a way that offends against Art. 15 of
the constitution because it makes a person’s gender an essential element of a criminal
offence. The defendant provides evidence of rape laws in other jurisdictions which are not
gender specific, for example those in an Australian state which provide that rape is defined
as “the act of sexual penetration performed by one person on another person without their
consent”.

- Adopting a flexible approach to interpretation of this constitutional guarantee, give

your opinion of how the court would deal with argument and predict what the court
would ultimately decide.

- On the other hand, what would a stricter approach to interpretation of this

guarantee achieve and whom could it serve to protect?

Let us briefly go back to IRAC:

• (I) ‘Issues’ are always narrower questions which enable us to answer the question ie.
whether a law is valid vis-à-vis the Constitution. Issues are not simply repeating the question.
Students need to develop more practice in regards to extracting the issues from the facts of
the case scenario. It is not correct to simply use the question as the issue.
• (R) The ’Rules’ follow the issues, you do only refer to the rules that you can link to the
issues! You need to identify the particular parts of the legislation that are relevant to the
issues you have identified.
• (A) Finally, you need to practise to making reference to the legislation in the ‘Application’
section. The whole point of IRAC is to enable you to discuss the facts in light of the relevant
law.’

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(C) Then briefly summarise your findings in the conclusion and answer the initial question
based on these findings.
Students have, for this questions, come up with all sorts of answers. It is important to stick to
the question here.
- Article 15 of the constitutional provision generally refers to all persons instead of a specific
gender. Therefore, the fact that he was charged for raping a woman could be viewed as
unconstitutional.
A better student’s answer:
This activity was based on the case below. Students should compare their answers to the
outcome of this case and also critically analyze the outcome of this case. It would not be a
surprise if your answer had a different outcome, particularly one focusing more on a flexible
approach to the constitutional provisions rather than a flexible approach to the ordinance as
seen in the Hunt v Police case.
There is a contradiction between the definition of rape and the constitutional provision (art
15). The art 15 states that all persons should be treated equally however, offence of rape
defines as an act of male person having sexual intercourse with a women or girl without her
consent freely or voluntarily given. Here, it does not go down well with the art 15 it more like
discriminating against male. Things evolve over time as society and today women also rape
therefore, the definition of rape should be changes or review to fit today’s context.
As the art 15 and the rape definition contradict each other with the evolving of society,
interpretation should change to fit the society today by then it will give rise to equality for
both gender male and female as stated in art 15.
By adopting flexible approach in this case, court will likely to rule in favor of the defendant
base on the fact that there is a contradiction between art 15 and rape definition.
We should flesh this out in the Hunt case below, without repeating our arguments…

THE END